Enemy Combatant To Move To Civilian Court

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An accused enemy combatant, who has been held for more than five years at a Navy brig in South Carolina, is expected to be sent to Illinois to stand trial in a civilian courtroom. The Justice Department has not yet announced charges against Ali al-Marri. The Bush administration had claimed terror suspects caught in the U.S. could be held indefinitely without charges.

RENEE MONTAGNE, host:

This morning we have a major shift to report in the way the government approaches counterterrorism. President Bush always claimed the authority to detain suspected terrorists in the United States and hold them indefinitely without charge. Those people were declared enemy combatants. Now only one of those detainees is left in the U.S. His name is Ali al-Marri, and the Obama administration is seeking criminal charges against him. That is part of the difference. NPR justice correspondent Ari Shapiro joins us now with more details.

Good morning, Ari.

ARI SHAPIRO: Good morning, Renee.

MONTAGNE: Let's begin with you reminding us who Ali al-Marri is and what he's accused of.

SHAPIRO: He's a citizen of Qatar who lived in Peoria, Illinois as a grad student in 2001, when he was arrested and accused of being effectively an al-Qaida sleeper agent. He was charged with credit card fraud. But then the government decided instead of charging him in criminal court they wanted to designate him an enemy combatant. So they put him in a military brig in South Carolina and that's basically where he has been ever since, without trial or criminal charges.

MONTAGNE: Tell us then about the Obama administration's decision to seek an indictment against him.

SHAPIRO: Well, this has been one of the top issues as far as pressing counterterrorism concerns go for the Obama administration. According to people familiar with the situation, yesterday prosecutors went before a grand jury in Peoria, Illinois and they asked for an indictment against Mr. Marri on charges of supporting terrorism.

An indictment presumably would lead to a trial, which would be a major shift in the way the government handles Mr. Marri. Instead of just holding him forever as an enemy combatant, they would shift him from the military justice system to the civilian criminal justice system.

Yesterday, I should note, the Justice Department and the White House declined to comment on this case.

MONTAGNE: Now, another layer of this is that the Supreme Court has already agreed to hear the case of Ali al-Marri. And what happens now that the circumstances have changed rather dramatically?

SHAPIRO: Well, that's not clear. Presumably the government is going to ask the Supreme Court not to hear the case. If they indict al-Marri they'll say the Supreme Court no longer needs to answer this question of whether the government can detain someone indefinitely without charge, because there's no longer anyone being held indefinitely without charge.

Marri's lawyer says the justices need to hear this case. Jonathan Hafetz is the attorney's name, and yesterday he said - this is a quote: "It is vital that the Supreme Court case go forward, because it must be made clear once and for all that indefinite military detention of persons arrested in the U.S. is illegal and that this will never happen again."

Now, there's a recent case that we might be able to look at for some evidence of what the Supreme Court could do here. There was another enemy combatant being held in the U.S. named Jose Padilla. And the Bush administration eventually decided to bring criminal charges against him after the Supreme Court had decided to hear his case.

Mr. Padilla's lawyer said the Supreme Court should hear the case anyway. The justices said no, we don't need to, the guy's been indicted, there's no longer reason for us to answer this question.

MONTAGNE: And what might, if anything, Marri's case mean for those inmates still at Guantanamo Bay?

SHAPIRO: Well, this is the big question. The fact that Marri has been indicted says nothing about the Obama administration's overall position on whether anyone can be held indefinitely without charge. Civil liberties groups would love for the Obama administration to say we're never going to hold anyone indefinitely without charge.

But in fact several high level officials in the administration have said the U.S. is at war with al-Qaida, there will be warriors who are picked up, and those warriors may need to be detained indefinitely, whether it's someplace like Bagram Air Base in Afghanistan or potentially here in the U.S.

MONTAGNE: Ari, thank you.

SHAPIRO: You're welcome.

MONTAGNE: Ari Shapiro is NPR's justice correspondent.

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